Monday, March 23, 2015

Failure to put election to accused a jurisdictional failure

R. v. Shia, 2015 ONCA 190:[32]In Varcoe, this court considered whether s. 686(1)(b)(iv) could save a harmless failure to put an accused to his election under s. 536(2) of the Criminal Code. There, as here, the accused was charged with an indictable offence that required an election. There, as here, the jurisdiction of the trial court over the offence depended entirely on the election of the accused to be tried by that court. This court held that, in the absence of an election, or valid waiver of it, the trial court lacked jurisdiction over the offence and the proviso in s. 686(1)(b)(iv) could not be applied: Varcoe, at para. 22; Mitchell, at para. 29.